Durfee 

Oration  delivered  at  the 

Dedication  of  the 
Providence  County  Court  House 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


ORATION 


DKI.IVKISK.I)     VT    THK 


DEDICATION 


PROVIDENCE  COUNTY  COURT  HOUSE, 


)EGEMEER   15,  1S77, 


BY  THE  HON.  THOMAS  DURFEE, 


i  im:r  .irsTici:  or  THK  SI'IMSK.VK  coi  HT  OF  THK  STATK  OK  UIKHIK  I-I.ANP. 


P  R  O  V I  D  JE  N  G  J 

KI-'l'MAN    \    CO.,    I'KIMKKS    To     IIIK    STATE. 

i  8  7  9  . 


ORATION 


DELIVERED    AT    THE 


DEDICATION 


PROVIDENCE  COUNTY  COURT  HOUSE, 

DECEMBER  18,  1877, 

BY  THE  HON.  THOMAS  DURFEE, 

CHIEF  JUSTICE   OP   THE  SUPREME   COURT  OF  THE   STATE   OF  RHODE   ISLAND. 


PROVIDENCE: 

E.   L.   FREEMAN    &    CO.,   PRINTERS    TO    THE    STATE. 
1879. 


F 


State  of  gfeobt  Jslanb,  etc. 


Ix  GENERAL  ASSEMBLY, 

JANUARY  SESSION,  1879. 

RESOLUTIONS  concerning  oration  delivered  by  Hon. 
Thomas  Durfee,  at  the  dedication  of  the  Providence 
County  Court  House. 

(Passed  March  26,  1879.) 

RESOLVED,  That  His  Honor  Thomas  Dnrfee,  chief 
justice  of  the  supreme  court,  is  hereby  requested  to 
furnish  this  general  assembly  with  a  copy  of  the  admi- 
rable oration  spoken  by  him  at  the  dedication  of  the 
Providence  county  court  house,  on  the  18th  day  of 
December,  1877,  that  the  same  may  be  appropriately 
printed. 

RESOLVED,  That  the  secretary  of  state  is  hereby  in- 
structed, upon  the  receipt  of  the  manuscript  of  said 
oration,  to  cause  one  thousand  copies  of  the  same  to  be 
printed;  and  the  state  auditor  is  hereby  authorized 
to  draw  his  order  for  the  expense  thereof,  out  of  any 
money  not  otherwise  appropriated  in  the  treasury. 

A  true  copy.     Attest: 

JOSHUA  M.  ADDEMAN, 

Secretary  of  State. 


1063177 


PREFATORY    NOTE. 


The  Providence  County  Court  House  is  located  at  the 
south-west  corner  of  College  and  Benefit  streets,  in  the 
city  of  Providence,  and  occupies  what  was  formerly 
known  as  the  Old  Town  House  lot,  a  site  which  has 
been  used  in  part  for  public  purposes  for  nearly  a  cen- 
tury. The  land  was  condemned  and  taken  for  public 
use  as  a  site  for  a  Court  House  for  the  county  of  Prov- 
idence, by  act  of  the  General  Assembly  passed  March 
9,  1875.  On  the  following  day,  Messrs.  Amasa  S.  West- 
cott,  Edwin  Darling  and  Thomas  P.  Shepard  were 
elected,  in  Grand  Committee,  Commissioners  to  build  a 
new  Court  House  on  the  above  designated  site,  with 
instructions  to  report  plans  and  estimates  during  the 
same  session.  On  the  30th  of  March,  1875,  the  Com- 
missioners were  empowered  to  build  the  Court  House 
substantially  according  to  the  plans  by  them  submitted, 
and  an  appropriation  was  made  therefor. 


(>  conrr  HOFSE  DEDICATION. 

Ground  for  the  building  was  broken  July  30,  1875. 
The  corner  .stone  of  the  edifice  was  laid  by  the  Grand 
Lodge  of  Masons,  May  15,  1S7G,  the  oration  on  the 
occasion  being  delivered  by  Hon.  John  H.  Stiness. 

The  building  was  dedicated  December  18th,  1877. 
At  the  dedicatory  exercisas  a  large  audience  was  present, 
embracing  the  member?  of  the  General  Assembly,  of  the 
bar,  and  other  gentlemen  prominent  in  public  or  private 
life. 

The  dedicatory  exercises  comprised  a  statement  by 
Mr.  Alfred  Stone,  of  the  firm  of  Stone  &  Carpenter, 
architects,  of  the  construction  of  the  building:  an  ad- 
dress by  Hon.  Amasa  S.  Westcott,  chairman  of  the 
Commission,  who  at  the  close  of  his  remarks  delivered 
the  keys  of  the  Court  House  to  His  Excellency  Governor 
Van  Zandt,  by  whom  a  suitable  response  in  behalf  of 
the  State  was  made. 

By  the  Governor  the  keys  were  transferred  to  the  cus- 
tody of  Christopher  Holdeu,  Esq..  Sheriff  of  the  county 
of  Providence,  who  received  them  with  appropriate  re- 
marks. 

The  dedicatory  prayer  was  then  offered  by  Right  Rev. 
Thomas  M.  Clark,  Bishop  of  the  Diocese  of  Rhode 
Island. 


PREFATORY    NOTE.  7 

Hon.  Thomas  Durfce,  Chief  Justice  of  the  Supreme 
Court,  the  orator  of  the  day,  was  then  introduced  and 
pronounced  the  oration,  which  is  given  entire  in  the  fol- 
lowing pages. 

The  oration  was  followed  by  an  address  from  Hon. 
Abraham  Payne;  a  collation  and  post-prandial  remarks 
by  Gov.  Van  Zandt,  Hon.  George  A.  Brayton,  Ex-Chief 
Justice,  Hon.  Zachariah  Allen,  Bishop  Clark,  Senators 
Henry  B.  Anthony  and  A.  E.  Burnside,  James  C.  Col- 
lins, Esq.,  Nicholas  Van  Slyck,  Esq.,  and  Gen.  George 
Lewis  Cooke. 

The  cost  of  the  building,  including  furniture,  was 
$253,253.70,  being  within  the  appropriations  therefor. 

Dr.  Thomas  P.  Shepard,  one  of  the  original  Com- 
missioners, deceased  May  5,  1877,  and  was  succeeded  by 
Hon.  John  H.  Stiness,  who  with  his  associates  continued 
as  Commissioners  until  the  completion  of  the  building. 


JUDGE  DURFEE'S  ORATION. 


WE  are  here  to-day  to  celebrate  the  comple- 
tion of  this  edifice,  and  to  dedicate  it  to  the  uses 
of  the  higher  judicial  tribunals  of  the  State. 
The  Commissioners  having  the  matter  in  charge 
have  invited  me  to  make  an  address  appropriate 
to  the  occasion.  But  what  can  I  say  which  I 
cannot  better  trust  you  to  think  V  Certainly  I 
need  say  nothing  in  commendation  of  the  build- 
ing. You  have  seen  it  rise  from  foundation  to 
turret,  and,  watching  the  gradual  development 
of  its  architectural  features,  have  learned  long 
ago  to  admire  its  outward  grace  and  beauty. 
And  manifestly  it  is  as  admirable  within  as  it  is 
without.  Time  will  doubtless  disclose  defects; 
but  I  venture  to  believe  that  it  is  essentially  per- 


10  COURT    HOUSE    DEDICATION. 

feet  in  its  adaptations.  It  is  a  superb  monument 
to  the  genius  of  its  youthful  architects.  It  re- 
flects great  credit  upon  the  Commissioners  who 
have  supervised  its  construction.  Especially 
does  it  signalize  the  cultivated  taste  and  rare 
practical  skill  of  that  one  of  them  who  lives  no 
longer  to  receive  our  congratulations.  Beauti- 
ful is  it  also  for  situation,  being  close  by  the 
city's  busy  centre,  and  yet  sequestered  from  its 
noise  and  agitations.  Seldom  has  justice  had  a 
worthier  temple.  Long  may  it  remain  a  bless- 
ing to  successive  generations.  And  long  may 
the  spirit  of  fitness  and  order  and  majestic  sim- 
plicity, here  so  visibly  enwrought,  be  felt  as  a 
salutary  influence,  chastening  and  elevating,  in 
the  discussions  and  conflicts  of  the  forum. 

The  dedication  of  this  edifice  marks  a  new  era 
in  the  forensic  history  of  the  State.  It  is  the 
first  house  ever  built  exclusively  for  the  courts. 
It  signifies  that  the  courts  have  outgrown  their 
ancient  accommodations,  or,  in  other  words,  that 


JUDGE  DUBFEB'S  ORATION.  1 1 

their  business  has  greatly  and  permanently  in- 
creased. Thirty  years  ago,  the  Supreme  Court 
sat  in  Providence  from  sixty  to  seventy  days  a 
year;  now  it  sits  two  hundred  days,  or  three 
times  as  long.  The  cases,  now,  are  not  only 
more  numerous,  but  also  more  varied,  intricate 
and  important.  A  similar  change  has  taken 
place  in  the  Court  of  Common  Pleas.  What 
does  it  mean  ?  To  what  is  it  going  to  lead  ? 
It  means  that  there  has  been  a  great  change  in 
the  community.  It  is  going  to  lead,  and  has  al- 
ready led,  to  a  great  change  in  the  professional 
character  and  forensic  habits  of  the  bar. 

As  respects  the  community,  I  do  not  think  the 
change  has  come,  as  might  be  supposed,  from 
any  growing  litigiousness.  Litigiousness  is  the 
vice  of  a  shiftless  and  vacant  community,  crav- 
ing excitement,  and  therefore  greedy  of  contro- 
versy. It  is  not  the  vice  of  a  busy  community 
absorbed  in  its  own  affairs,  and  having,  to  divert 
its  leisure,  the  appliances  of  a  luxurious  city. 


12  COURT    HOUSE    DEDICATION'. 

Rather  does  the  change  imply  that  the  commu- 
nity, while  becoming  more  populous,  is  also  be- 
coming more  variously  developed  in  its  social, 
civic  and  business  concerns.  It  is  a  sign  of  pro- 
gress, not  deterioration.  The  State  is  a  hum- 
ming hive  of  industry.  Its  industry  is  not 
homogeneous,  but  of  many  kinds,  co-operative 
and  competing.  Hence  new  duties,  new  inter- 
ests, new  and  complex  relations,  evolving  new 
and  complex  questions  of  law  and  fact.  The  re- 
sources of  jurisprudence  are  taxed  to  the  utmost. 
New  laws  are  constantly  demanded,  and  the 
General  Assembly,  as  well  as  the  courts,  pro- 
longs its  sessions.  Progress  has  been  said  to 
proceed  by  the  evolution  of  the  more  complex 
out  of  the  less  complex.  It  is  not  ascent  only, 
but  also  diversification.  Life,  as  it  develops, 
propounds  more  problems  than  it  solves,  and 
can  not  multiply  rights  without  multiplying  the 
wrongs  which  result  from  their  infringement. 
\Ve,  then,  who  are  lovers  of  progress,  have  no 


JUDGE  DURFEE'S  ORATION.  !.'{ 

right  to  complain  of  its  complications,  nor  to 
expect  that  the  questions  thence  arising  will  not 
lead  to  a  continual  increase  of  litigation. 

But  for  us  to-day,  the  matter  of  interest  is  the 
effect  of  this  increase  on  the  bar.  One  obvious 
effect  is  an  increase  of  lawyers.  Thirty  years 
ago  there  were  between  fifty  and  sixty  practic- 
ing lawyers  in  Providence  county ;  there  are 
now  between  one  hundred  and  sixty  and  one 
hundred  and  seventy,  or  three  times  as  many. 
Thirty  years  ago  the  bar  was  not  too  numerous 
to  constitute  a  true  fraternity.  Its  members  met 
often  in  social  and  professional  intercourse,  and 
they  met  always  as  familiar  friends.  To-day 
many  members  of  the  bar  are  strangers  to  each 
other.  They  meet  too  seldom,  there  are  too 
many  of  them,  they  are  too  segregated  in  pur- 
suit, to  feel  the  bond  of  professional  fellowship. 
Hence  they  are  losing  their  esprit  de  corps,  for- 
getting the  traditions  of  their  order,  and  ceasing 
to  have  any  common  sentiment  of  professional 


14  COURT    HOUSK    DEDICATION. 

honor  or  any  common  criterion  of  professional 
merit.  This  is  to  be  regretted.  The  tone — the 
morale — of  the  bar  suffers  in  consequence.  The 
tendency  is  to  degrade  the  profession  to  the  level 
of  a  trade,  and  to  obscure  the  idea  of  its  public 
and  quasi-official  character.  1  would  not  press 
the  point  too  far.  There  are  lawyers  without 
doubt  who  are  sufficient  to  themselves.  They 
need  no  incentive  but  their  own  ambition,  no 
safeguard  or  support  but  their  own  virtue,  and 
no  exemplar  but  their  own  ideal.  They  can 
stand  well  enough  alone, — and  yet  it  is  nobler 
for  them  to  stand  banded  with  their  brothers. 
Indeed  they  cannot  escape  the  solidarity  of  their 
profession.  For  the  great  majority  of  the  bar 
there  is  both  discipline  and  encouragement  in 
the  feeling  that  they  belong  to  a  fraternity  which 
cherishes  a  fraternal  interest  in  their  behavior. 
I  know  the  bar  will  pardon  me  if  I  entreat  them 
not  to  let  the  feeling  perish.  There  is  degener- 
acy in  its  decay.  It  is  no  longer  fostered  as  of 


JUDGE  DURFEE'S  ORATION.  15 

old  by  the  circumstances  of  the  bar.  Let,  then, 
the  leaders  of  the  bar  create  and  improve  op- 
portunities for  its  cultivation. 

Another  effect  of  the  increase  of  litigation 
shows  itself  in  the  decline  of  forensic  oratory. 
The  lawyer  who  has  many  cases  to  try  must 
husband  his  powers.  He  cannot  exert  them  as 
prodigally  as  if  he  had  but  few.  He,  therefore, 
adopts  a  more  simple  and  business-like  manner  of 
speech.  Again,  it  is  not  every  case  that  admits 
of  oratory.  Cases  for  eloquence  are  cases  which 
involve  the  primary  interests  or  appeal  to  the 
primary  feelings  of  mankind.  It  is  when  some 
personal  or  domestic  right  is  violated,  or  politi- 
cal privilege  impugned,  or  historic  principle  in- 
voked, or  when  the  mystery  of  crime  awakes 
curiosity  or  appals  the  conscience,  or  when  a 
case  abounds  in  revelations  of  character  or  of 
striking  contrasts  and  vicissitudes,  that  eloquence 
finds  its  appropriate  field  and  safely  essays  its 
sublimest  flights.  But  such  cases  are  few  and 


1  (J  COURT    HOUSE    DEDICATION. 

do  not  multiply  with  the  progress  of  society. 
In  our  day  the  cases  which  chiefly  employ  the 
courts  grow  out  of  the  complexities  of  business, 
and  relate  to  artificial  or  conventional  rights  and 
duties,  or  to  questions  of  negligence,  or  to  pecu- 
niary values,  or  to  interests  in  property,  or  to 
the  more  delicate  demarcations  of  power  and 
responsibilty  in  business  affairs.  In  such  cases 
eloquence  is  of  small  avail ;  but  it  is  precision 
of  language,  clearness  of  method,  completeness 
of  analysis,  logical  fertility  and  patness  of  illus- 
tration, flooding  the  argument  with  light — not 
the  chromatic  splendor  of  the  imagination,  but 
the  dry,  white  light  of  the  understanding— 
which  carries  conviction  to  the  jury,  or  per- 
suades the  court.  Such  an  exhibition  of  intel- 
lectual power  is  more  fascinating  often  to  the 
appreciative  mind  than  eloquence  itself;  but  it 
is  not  eloquence,  and  it  does  not  captivate  the 
crowd. 

The  same  cause  has  contributed  to  the  same 


JUDGE  DURFEE'S  ORATION.  17 

result  in  another  way,  namely,  by  modifying  the 
relations  of  the  court  to  the  jury.  In  early 
times  the  court  did  little  but  regulate  the  trial 
and  decide  questions  of  evidence.  It  left  the 
jury  to  find  its  verdict  almost  without  guidance 
or  instruction.  Under  such  a  system  a  jury  trial 
became  a  sort  of  oratorical  combat  or  tourna- 
ment. The  argument  had  the  utmost  license. 
It  mingled  ridicule  with  reason  ;  it  abounded  in 
inflammatory  appeals  to  sympathy  and  preju- 
dice ;  it  was  enlivened  with  wit  and  humor ;  it 
was  interspersed  with  anecdote ;  it  revelled  in 
personalities ;  it  was  eloquent,  impassioned,  vitu- 
perative, panegyrical,  denunciatory,  anything,  in 
short,  for  success.  The  wrong,  if  the  more  ably 
championed,  especially  if  it  had  the  last  word, 
was  not  at  all  unlikely  to  triumph  over  the 
right.  The  system  presented  the  strongest  pos- 
sible stimulus  to  oratorical  talent.  It  passed 
away  with  the  appointment  of  trained  lawyers 
to  the  bench,  and  their  appointment  was  one 


IS  roniT  HOUSE  DEDICATION. 

effect  of  the  multiplication  of  important  civil 
cases.  It  passed  away,  not  instantly  it  is  true, 
but  by  degrees ;  for  the  old  habits  long  survived, 
and  the  judges  were  slow  to  assert  their  just  as- 
cendency. 

When  I  say  this  1  do  not  mean  to  indicate  or 
justify  any  encroachment  upon  the  province  of 
the  jury.  The  court  has  no  right  to  argue  a 
case.  It  ought  not  to  express  its  opinion  on 
questions  of  fact.  But  it  has  the  right,  it  is 
often  its  duty,  to  lay  down  the  law  distinctly 
and  authoritatively  as  it  applies  to  all  the  dif- 
ferent phases  which  a  case  can  assume  in  the 
minds  of  the  jury,  and  in  doing  this  to  present 
the  testimony  afresh  in  all  its  bearings.  There 
is,  in  every  case,  a  logical  order,  and,  when  a 
case  is  put  in  that  order,  the  points,  on  which 
its  decision  will  properly  turn,  come  clearly 
out,  and  the  relevant  testimony  naturally  clus- 
ters about  them,  while,  the  irrelevant,  which  is 
so  apt  to  bias  and  mislead,  drops  away  like  dross 


JUDGE  DURFEE'S  ORATION.  19 

from  pure  metal  when  it  is  refining.  To  put  a 
case  thus  to  the  jury  is  often  all  that  is  required 
to  clarify  their  perceptions  and  make  their  duty 
patent  to  them.  It  is  often  all  that  is  required 
to  neutralize  the  evils  of  a  perverse  or  an  im- 
moderate advocacy.  And  certainly  before  its 
searching  operation  the  bombast  and  inflation  of 
a  spurious  oratory  can  hardly  fail  of  falling  into 
ridiculous  and  disreputable  collapse. 

But,  furthermore,  increase  of  litigation  dis- 
courages forensic  oratory  in  still  another  way. 
Oratory  loves  the  popular  ear.  It  abhors  the 
hollow  reverberations  of  empty  walls.  It  lan- 
guishes without  a  numerous  auditory.  But  a 
court  always  in  session  is  not  a  popular  resort. 
The  public  leaves  the  press  there  alone  to  see 
and  hear  for  it.  The  lawyers,  not  actually  en- 
gaged there,  desert  it  for  their  offices.  It  is 
when  terms  are  short  that  the  court  attracts  the 
multitude ;  and  then  especially,  if  it  is  recog- 
nized as  an  arena  for  intellectual  display.  Such 


20  COURT    HOUSE    DEDICATION. 

was  the  Supreme  Court  of  this  State  thirty  or 
forty  years  and  more  ago.  The  leaders  of  the 
bar  then  made  it  a  point  to  be  in  court  constant- 
ly when  the  court  was  in  session.  Lovers  of 
intellectual  and  emotional  excitement  visited  it 
in  crowds.  The  most  intelligent  citizens  were 
frequent  spectators  of  its  proceedings.  The  re- 
sult can  be  easily  imagined.  Trials  were  con- 
ducted under  the  ordeal  of  professional  criticism 
and  under  the  encouragement  of  popular  appre- 
ciation. Advocacy  acquired  the  perfection  of  a 
fine  art.  The  trial  of  a  great  cause  gave  delight 
like  a  drama,  and,  by  reason  of  its  reality,  had 
an  even  more  absorbing  interest.  The  fame  of 
the  leading  lawyers  of  that  day  is  still  a  treas- 
ured tradition  of  the  bar.  We  who  have  never 
seen  the  men  have  yet  a  realizing  impression  of 
their  mental  characteristics,  and  can  conjure  up, 
as  it  were,  some  visionary  presentment  of  their 
persons.  To  paint  their  portraits  is  no  part  of 
my  design.  That  is  for  others  ;  my  palette  lacks 


JUDGE  DURFEE'S  ORATION.  21 

the  necessary  colors.  But  nevertheless  I  may 
be  permitted  to  pause  for  a  moment  and  call 
over  the  roll  of  their  illustrious  names ;  for  to 
do  so  will  bring  into  clearer  relief  the  reality 
and  character  of  the  change  which  I  am  assert- 
ing. 

The  familiar  names  will  doubtless  occur  to  you 
before  I  utter  them ;  blame  me  riot  if  some  oc- 
cur to  you  which  I  leave  unuttered ;  for  I  can- 
not exhaust  the  catalogue.  There  was  James 
Burrill,  with  his  practical  and  persuasive  sagac- 
ity, cultivated  mind  and  sterling  character ;  Na- 
thaniel Searle,  with  his  unerring  and  lightning- 
like  perception  of  the  pivotal  points  of  a  case ; 
Tristam  Burges,  with  his  brilliant  but  caustic 
oratory  and  audacious  antagonisms;  and  passing 
to  Newport,  Asher  Robbins,  with  his  polished 
speech  and  affluence  of  classic  learning ;  William 
Hunter,  with  his  ornate  and  modulated  rhetoric 
and  stately  elocution  ;  Benjamin  Hazard,  with 
his  withering  wit  and  dialectical  acumen  ;  and, 


22  COURT    HOUSE    DEDICATION. 

passing  still  on  to  Narragansett,  the  late  Elisha 
R.  Potter,  with  his  commanding  personality  and 
masculine  common  sense.  What  a  galaxy  of 
splendid  and  strongly  contrasted  minds!  And 
others  there  were,  their  contemporaries  yet  sur- 
vivors at  the  bar,  who  have  for  many  of  us  a 
still  more  living  interest.  I  myself  can  well  re- 
member the  stalwart  and  colossal  form  of  Samuel 
Y.  Atwell,  towering  like  a  Titan,  as  with  rich 
and  sonorous  voice  he  poured  out  the  full  vol- 
ume of  his  spontaneous  and  powerful  eloquence, 
captivating  even  when  it  did  not  convince.  And 
still  better  can  I  remember  the  manly  port  and 
presence  of  John  Whipple  and  his  athletic  ac- 
tion, as  with  distinct  and  resonant  articulation, 
the  words  dropping  from  his  mouth  like  coins 
from  a  mint,  he  developed  the  serried  strength 
of  his  arguments  and  reinforced  them  with  his 
glowing  and  impetuous  declamation.  Him  Or- 
ville  Dewey,  once  having  heard  him  on  the 
hustings,  pronounced  the  most  eloquent  of  men. 


JUDGE  DURFEE'S  ORATION.  23 

And  again,  still  others  there  were,  memorable 
men,  but  of  a  more  modern  cast  of  mind,  though 
not  unschooled  in  the  earlier  methods.  I  will 
mention  four  of  them,  and  you  will  pardon  me 
if,  yielding  to  the  suggestions  of  memory,  I  do 
something  more  than  merely  mention  them. 

There  was  Richard  W.  Greene,  the  safe  coun- 
sellor, loving  the  light  of  ancient  precedent, 
learned  in  the  common  law  and  greatly  versed 
in  equity  jurisprudence  before  any  court  of  the 
State  had  as  yet  any  considerable  equity  juris- 
diction ;  not  a  moving  orator,  but  a  consummate 
master  of  analysis,  preeminent  for  his  power  of 
perspicuous  statement. 

There  was  Albert  C.  Greene,  a  gentleman  in 
the  truest  sense,  full  of  genial  kindness  and  ur- 
banity, dear  to  the  bar  and  dear  to  the  popular 
heart,  an  excellent  lawyer,  a  favorite  advocate, 
whose  prepossessing  fairness  and  never-failing 
good  sense  were  more  invincible  often  than  the 
finest  oratory.  He  was  unrivaled  as  an  exam- 


24  COURT    HOUSE    DEDICATION. 

iner  of  witnesses.  The  friendly  witness,  no 
matter  how  embarrassed,  was  instantly  put  at 
ease  by  his  gentle  manipulation.  But  his  forte 
was  the  cross-examination  of  the  hostile  or  se- 
cretive witness.  It  was  the  angler  playing  with 
his  victim.  Far  from  seeking  to  intimidate,  he 
humored  him  to  the  top  of  his  bent,  putting  him 
off  his  guard  and  getting  his  good-will  by  de- 
grees, while  he  pleasantly  unmasked  his  prevari- 
cations or  concealments,  and  kept  him  all  the 
time  complacently  unconscious  of  the  operation. 
There  was  Thomas  F.  Carpenter,  with  his 
Ulyssean  mind  and  amazing  art  of  winning  ver- 
dicts in  desperate  cases.  I  have  often  heard 
him.  He  was  exceedingly  plausible  and  ingeni- 
ous, a  sort  of  magician  of  the  forum.  In  his 
hands  the  flimsiest  supposition  or  conjecture 
quickly  got  to  looking  like  a  solid  fact.  He 
was  an  actor  as  well  as  an  advocate.  He  man- 
aged every  case  with  imposing  seriousness,  as  if 
he  felt  its  justice  and  importance  too  deeply  to 


JUDGE  DURFEE'S  ORATION.  25 

trifle  with  it.  He  treated  the  court,  however 
unfavorable,  with  deferential  respect ;  for  he 
wished,  if  possible,  to  seem  always  to  have  it 
on  his  side.  And  deferential  as  he  was  to  the 
court,  he  was  still  more  deferential  to  the  jury. 
This,  in  itself,  was  a  potent  piece  of  flattery. 
But  it  was  not  enough  for  his  purposes.  He 
knew  the  insatiate  swallow  of  mankind.  He 
plied  the  jury  with  compliments,  lavished  or  in- 
sinuated at  every  point.  You  think,  perhaps, 
the  artifice  was  too  shallow  to  succeed.  I  doubt 
not  the  jurors  thought  so  too ;  but,  all  the  same, 
he  got  his  verdicts  from  them ;  especially  when 
he  had  the  closing  argument.  But  let  me  not 
be  misunderstood.  I  do  not  mean  that  he  was 
great  only  in  desperate  cases,  and  before  a  jury. 
He  was  a  man  of  extraordinary  powers,  as  well 
as  of  extraordinary  idiosyncrasies,  and  whoever 
crossed  weapons  with  him  in  any  cause  was  sure 
to  encounter  a  formidable  antagonist. 

Finally  there  was  Samuel  Ames,  not  a  lawyer 


26  COURT    HOUSE    DEDICATION. 

merely  but  a  jurist,  cultivating  jurisprudence  as 
a  science  or  a  philosophy.  His  capacious  mind 
was  not  only  stored,  but  impregnated  and  fertil- 
ized with  the  principles  and  precepts  of  the  law 
as  with  so  many  living  and  procreant  germs.  His 
juridical  fullness  and  fertility  were  apparent,  not 
only  in  his  forensic  efforts,  often  too  exhaustive 
for  the  occasion,  but  even  in  his  common  con- 
versation, which,  moreover,  was  as  vivacious  as 
it  was  instructive.  As  Chief  Justice  he  has  left 
in  the  Rhode  Island  Reports  many  a  permanent 
proof  of  his  powers,  but  nothing  which  duly 
represents  the  brimming  exuberance  and  facility 
of  his  intellect.  No  Rhode  Island  lawyer  ever 
exhibited  so  full  and  so  supple  a  mastery  of  the 
complex  and  enormous  system  of  English  juris- 
prudence. 

This   brief  retrospect    confirms   my    view.— 
Among   the   lawyers  just   named,  the  two  who 
are  most  familiar  to  us  are  Richard  \Y~.  Greene 
and  Samuel  Ames.     They  were  neither  of  them 


JUDGE    DUKFEE  S    ORATION.  1 1 

splendid  orators,  like  Whipple  or  Surges.  They 
were  effective  speakers ;  but  for  us  their  chief 
distinction  is  that  they  were  masters  of  the 
modern  method,  and  so  can  teach  us  more  than 
their  more  eloquent  contemporaries  or  predeces- 
sors. Another  master  of  that  method,  known 
to  all  of  us,  was  the  late  Thomas  A.  Jenckes. 
He  had  the  intellectual  weight  and  momentum 
and  the  large  utterance,  but  not  the  magical 
manner  and  self-enkindling  enthusiasm  of  the 
orator.  The  track  of  his  career  lies  shining 
along  the  steeps  and  among  the  summits  of  his 
profession.  It  indicates  the  path  of  success  for 
our  day.  What  is  that  path,  —  the  modern 
method,  as  I  have  denominated  it  ?  It  is  not  a 
path  for  lazy  genius,  dreaming  of  unearned  re- 
nown. It  is  not  a  showy  method,  in  which  sham 
can  serve  for  substance.  It  is  the  method  of 
prudent  business,  seeking  valuable  ends  through 
means  appropriate  to  them.  It  is  the  method 
of  indefatigable  study,  of  disciplinary  practice, 


28  COURT    HOUSE    DEDICATION. 

of  varied  and  accurate  acquirement.  It  is  the 
method  which  demands  for  particular  cases  the 
mastership  of  particular  preparation.  It  is  the 
true  method  for  all  earnest  aspirants  to  juridical 
distinction.  Profit  may  be  reaped  on  the  lower 
levels ;  but  honor  and  fame  grow  aloft,  where 
they  cannot  be  reached  without  climbing  for 
them.  Let  the  brave  student  gird  himself  for 
the  ascent.  It  is  difficult,  but  full  of  exhilara- 
tion. Just  now.  too,  there  is  a  fresh  breeze 
blowing,  vivifying  what  it  blows  upon.  A  new 
light,  rising  in  the  dusky  dawn  of  the  primeval 
world,  is  just  beginning  to  shine  through  the 
lenses  of  history  and  archaeology  into  the  ob- 
scurer provinces  of  the  law.  The  study  of  com- 
parative jurisprudence  is  showing  that  there  is 
in  law,  as  there  is  in  language,  a  substratum 
common  to  the  Aryan  nations,  pointing  to  their 
common  origin,  and  so  imparting  to  the  dryest 
and  most  crabbed  of  legal  antiquities  a  truly 
human  and  philosophical  interest.  The  profes- 


JUDGE  DURFEE'S  ORATION.  29 

sion  of  the  law,  therefore,  though  it  may  have 
lost  some  of  its  oratorical  prestige,  was  never 
more  attractive  than  it  is  to-day,  as  an  intel- 
lectual and  liberalizing  pursuit, 

But  because  forensic  oratory  has  declined,  it  is 
not  to  be  presumed  that  it  has  perished.  It  has 
merely  descended  from  the  chief  to  a  subaltern 
position.  Even  there  it  can  often  be  used  with 
enchanting  and  irresistible  effect.  Oratory  is 
one  of  the  divinest  of  the  arts,  and  it  cannot'lose 
its  potency  so  long  as  the  human  heart  retains 
its  human  sensibilities.  No  young  lawyer  who 
feels  its  birth-throes  need  smother  them  in  his 
bosom  ;  for  eloquence,  if  genuine,  is  always  well 
received.  How  quickly  does  the  court-room  fill, 
even  in  our  day,  when  it  is  bruited  abroad  that 
some  case  is  coming  on  which  involves  matter 
of  deep  passion  or  popular  concern,  to  be  han- 
dled by  eloquent  and  well-matched  advocates. 
How  eagerly  the  spectator  listens  to  the  open- 
ing words.  How  curiously  he  scans  the  parties. 


30  COURT    HOUSE    DEDICATION. 

How  soon  his  curiosity  warms  into  interest,  and 
his  interest  into  partisanship.  For  what  is  there 
more  fascinating  than  a  great  trial  conducted  by 
great  lawyers.  It  is  a  battle  in  which  powerful 
antagonists  contend  for  victory.  It  is  a  drama 
in  which  the  innermost  phases  of  human  nature 
are  developed  and  displayed.  It  is  an  arbitra- 
ment where  justice  holds  the  scales  and  pro- 
nounces her  dooms.  No  wonder  men  flock  in 
crowds  to  witness  it. 

For  one  I  rejoice  to  have  them  do  so.  I  want 
no  secret  tribunal.  There  is  nothing  like  pub- 
licity to  make  the  administration  of  justice  pure 
and  upright,  Moreover,  the  presence  of  the 
people  in  court-room  and  jury-box  have  done 
much  to  keep  the  law  on  a  level  with  their  plain 
sense  and  wholesome  feeling,  and  to  save  it  from 
over  refinement  and  piddling  distinctions.  We 
all  know,  too,  that  the  time  has  been  in  England 
when  the  jury  box  was  one  of  the  strongholds 
of  freedom.  It  is  well  for  justice  herself  to  feel 


JUDGE  DURFEE'S  ORATION.  31 

the  influence  of  fresh  and  ingenuous  minds,  to 
deliver  her  from  the  bondage  of  her  own  pre- 
cedents. It  is  well  for  bench  and  bar  to  have 
the  public  eye  upon  them ;  for  men  are  kept  at 
their  best  by  observation  and  criticism.  Finally, 
it  is  well  for  the  people,  for  their  own  good,  to 
frequent  the  high  tribunals  where  their  rights 
are  vindicated  and  their  wrongs  redressed.  I 
am  glad  that  here  there  is  provision  for  them. 
And  here  T  trust,  for  many  generations,  forensic 
oratory,  not  so  transcendant  it  may  be  as  of  old, 
nor  yet  so  unbridled,  but  chastened  and  subor- 
dinated, will  continue  to  attract  and  delight 
them. 

One  other  effect  on  the  bar  of  an  increase  of 
litigation  remains  to  be  noted.  DeTocqueville, 
in  his  book  on  Democracy  in  America,  celebrates 
the  predominance  of  lawyers  in  American  poli- 
tics. He  holds  that  lawyers  as  a  class  are  con- 
servative, lovers  of  order,  foes  to  innovation, 
followers  of  precedents,  and  so  the  natural  coun- 


32  COURT    HOUSE    DEDICATION. 

terpoise  to  popular  excesses ;  and  he  predicts 
the  ruin  of  the  republic  unless  their  influence 
keeps  pace  with  the  growth  of  popular  power. 
Xo  one  who  knows  the  past  will  deny  the  fact 
which  he  asserts,  whatever  he  may  think  of  his 
prophecy.  Consider  a  moment  the  century 
which  has  just  closed.  What  a  host  of  brilliant 
names  come  trooping-  to  remembrance :  Hamil- 
ton, Adams,  Jefferson,  Madison.  Marshall,  Web- 
ster, Clay,  Calhoun,  Benton,  Seward,  Lincoln. 
Stanton,  Chase.  Sunnier  and  a  hundred  others. 
To  pluck  them  out  of  American  history  would 
be  like  plucking  the  stars  from  the  firmament. 
Great  lawyers  in  great  places !  But  consider 
also  the  unhistoried  myriad  who,  in  obscurer 
offices  and  narrower  spheres,  have  been  fashion- 
ers of  public  opinion.  Who  can  estimate  the 
value  of  their  influences;'  Who  can  tell  how 
different  the  political  history  of  the  century 
might  have  been  but  for  their  enlightened  pa- 
triotism? 


JUDGE  DURFEE'S  ORATION.  33 

Now  I  think  it  is  evident  that  the  influence  of 
the  profession  in  public  and  political  matters  is 
waning.  This  is  attributable  to  several  causes. 
Chief  among  them  is  the  diffusion  of  education, 
which,  by  raising  the  general  level  of  intelli- 
gence, lessens  the  difference  between  lawyers 
and  laymen.  But  the  increase  of  legal  business 
is  a  cause  which  is  hardly  less  powerful.  The 
leaders  of  the  bar  are  absorbed  in  their  profes- 
sion, to  the  exclusion  of  other  interests  and  pur- 
suits. And  this  absorption  is  intensified  by 
augmented  fees.  The  love  of  lucre  is  the  great 
lever  of  the  modern  world,  and  is,  I  fear,  as 
potent  with  lawyers  as  with  other  men.  The 
prosperous  lawyer  has  no  leisure  for  politics  un- 
less he  makes  it ;  and  his  practice  is  so  profitable 
that  he  too  often  refuses  to  make  it.  And  so  he 
toils  and  moils,  and  gathers  gain  and  ends  by 
becoming  the  slave  of  his  own  speciality.  Of 
course  this  is  all  wrong.  No  citizen  has  a  right 
to  abdicate  his  citizenship.  The  abler  he  is,  the 


34  COURT    HOUSE    DEDICATION. 

more  sacred  his  duty  is,  to  think  for  and  counsel 
and  serve  the  State.  I  admire  the  ideal  exem- 
plified by  the  great  lawyers  of  Republican  Rome, 
who,  however  numerous  their  clients,  never  for- 
got to  be  citizens  and  patriots,  and  who,  whether 
in  or  out  of  office,  were  always  a  power  in  the 
commonwealth.  The  word  which  the  old  Latin 
writers  select  to  express  their  quality  is  u  attc- 
toritas,"  meaning  not  so  much  official  as  personal 
influence  and  authority,  or  weight  of  character 
in  public  matters.  I  wish  our  great  American 
lawyers  would  aspire  to  the  same  distinction. 

Permit  me  a  moment  more  on  this  point.  We 
live  in  an  age  of  political  and  social  ferment. 
The  spirit  of  communism  is  abroad.  The  old 
Hydra  of  inflation  grows  rampant  again.  The 
relations  of  labor  and  capital  are  disturbed. 
New  ideas  in  regard  to  property  are  promulga- 
ted. New  and  unsettling  ideas  in  regard  to  all 
things  are  freely  broached  and  discussed,  not 
alone  in  speculative  circles,  but  among  the  com- 


JUDGE  DURFEE'S  ORATION:  35 

mon  people.  Visionary  reformers  teem  with 
projects  of  legislation.  Innovation  is  the  order 
of  the  day.  I  trust  that  in  the  end  some  good 
will  somehow  come  out  of  all  this  turmoil  of 
revolutionary  thought.  But  meanwhile  it  af- 
fords tempting  opportunities  for  demagogy. 
The  crying  need  of  the  times  is  wisdom  and 
ripe  experience,  combined  with  disinterested 
patriotism,  to  enlighten  public  opinion.  Where 
can  we  look  for  them,  if  not  in  the  legal  profes- 
sion? The  accomplished  lawyer  is  by  education 
nine-tenths  of  a  statesman.  He  has  what,  in  the 
conglomerate  of  races  which  constitutes  the  Am- 
erican people,  so  few  have — a  living  sense  of 
the  continuity  of  our  civilization.  He  knows 
how  it  has  broadened  "slowly  down  from  pre- 
cedent to  precedent."  He  can  trace  through  a 
thousand  years  the  glorious  lineage  of  our  liber- 
ties. He  can  follow  the  right  of  property  back 
almost  to  its  origin.  He  knows  the  steps  by 
which  it  has  been  emancipated  from  feudal  fet- 


36  COURT    HOUSE    DEDICATION. 

ters.  He  knows  the  sanctions  by  which  its  in- 
violability is  secured.  He  can  see  how,  pivoted 
upon  that  inviolability,  it  has  become  the  main- 
spring of  modern  progress.  For  him,  to-day  is 
but  yesterday  unfolding.  He  distrusts  the  bast- 
ard progress  that  cannot  find  its  pedigree  in  the 
past.  It  is  this  peculiarity  of  his  education  which 
makes  him  conservative  and  fits  him  to  play  the 
part  which  De  Tocqueville  assigns  him  in  Ameri- 
can politics.  It  is  true,  conservatism  is  never 
safer  than  when  it  is  progressive.  This  the  ac- 
complished lawyer  knows ;  for  the  common  law 
is  an  example  of  it,  He  has  learned  from  that 
law  to  reason  and  generalize  and  advance  ;  but 
always  step  by  step,  feeling  the  ground  before 
him.  There  is  no  leap  in  the  dark — no  abstract 
theorizing — no  coursing  with  the  winged  Pega- 
sus of  phantasy.  Besides,  his  practice  brings 
him  into  acquaintance  with  many  minds  and 
shows  him  human  nature  as  it  is.  He  has 
learned  what  it  is,  too  well,  to  mistake  the  Uto- 


JUDGE  DURFEE'S  ORATION.  37 

pia  of  the  enthusiast  or  charlatan  for  the  real 
world.  Having  a  mind  of  such  prudence,  such 
knowledge,  such  various  training  and  capability, 
he  needs  only  preserve  his  probity  and  patriot- 
ism and  keep  himself  conversant  with  the  ques- 
tions of  the  day,  to  be  the  weightiest  of  public 
counsellors.  To  be  so  is  surely  worth  some 
sacrifice.  Indeed,  the  profession  ought  to  con- 
sider that  it  cannot  lose  its  political  ascendency 
without  losing  character  and  caste  as  a  profes- 
sion. 

I  must  bring  my  address  to  an  end.  This 
house  is  designed  to  endure  for  ages.  To-day 
it  is  barren  of  all  forensic  associations.  It  has 
no  history.  A  century  hence,  and  what  a  mul- 
titude of  memories  and  traditions  will  cluster 
about  it.  What  revelations  of  human  character 
and  destiny  will  have  been  made  within  it.  Add 
yet  another  century,  and  no  many-chaptered 
chronicle  of  Eld  were  more  multifariously  curi- 
ous and  instructive  than  these  dumb  walls,  if, 


38  COURT    HOUSE    DEDICATION. 

then,  they  could  but  report  their  past.  In  creat- 
ing their  history,  the  bar  and  the  bench  will 
necessarily  play  a  principal  part.  Upon  them 
will  it  depend  whether  the  history  shall  bring 
honor  or  discredit.  Let  us  then,  my  brothers 
of  the  bar  and  bench,  realizing  this,  elevate  our- 
selves above  all  mean  and  all  merely  mercenary 
views  to  a  high  and  just  conception  of  our  vo- 
cation ;  and  now.  while  we  dedicate  this  temple 
of  justice,  let  us  also  dedicate  ourselves,  as  min- 
isters of  justice,  to  an  upright,  pure  and  honor- 
able service  within  its  consecrated  precincts. 


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